IN THE HIGH COURT OF JUDICATURE AT BOMBAY

             CRIMINAL  APPELLATE JURISDICTION

CRIMINAL WRIT PETITION NO.2761 OF 2010

Mr.Sukesh Shridhar Shetty & Anr.

….Petitioners.

Vs.

The Commissioner of Police & Ors.

….Respondents

Mr. Shirish Gupte, Sr. Advocate with Mr. M.K. Kocharekar, advocate for

petitioners.

Dr. F.R.Shaikh, APP for State.

CORAM:­ A.M.KHANWILKAR AND

      A.P. BHANGALE,  JJ.

DATED:­  NOVEMBER 25, 2010.

P.C.

  1.  By this Petition under Article 226 of the Constitution of India, it is essentially prayed that the FIR registered against the Petitioners being C.R.No. 293 of 2010 in Malad Police Station, Mumbai be quashed and set aside. In addition, there are other two prayers which however, are not pressed during the course of argument with request to keep all the questions in that behalf raised by the Petitioners open to be decided at the appropriate stage.
  1.  Besides, although relief in terms of prayer clause(c) is for quashing of FIR, during the course of argument, Counsel for the Petitioners has stated on instruction that the Petitioners will only press for quashing of application of offence under sections 3 and 7 of the Child Labour (Prohibition and Regulation) Act, 1986, against them in the impugned FIR. In other words, no argument is canvassed before us with regard to the application of section 374 of I.P.C. and Section 23 and 26 of Juvenile Justice (Care & Protection of Children) Act, 2000.
  1.  Accordingly, we will confine this judgment only to the question whether sections 3 and 7 of the Act of 1986 could have been applied in the fact situation of the present case. Even if the prosecution case were to be accepted as it is, the indisputable fact emerging from the FIR and in particular, the birth certificates of the six persons rescued from the working place of the Petitioners would reveal that all these six persons were above 14 years of age and below 18 years of age. To attract the offence under sections 3 or 7 of the Act of 1986, the quintessence is that the victim person must be a child below 14 years of age.
  1.  The term “child” has been defined in section 2(ii) of the Act of 1986 to mean a person who has not completed his 14 years of age. Both sections 3 and 7 of the Act of 1986 envisage that if the person employed is a child, which means he must be below 14 years of age, the act of commission and omission referred to in the said provision would constitute offence under the said Act. Section 3 prohibits employment of “children” in certain occupations and processes. Similarly, Section 7 prohibits employment of “child” to work in any establishment in excess of such number of hours as may be prescribed for such establishment or class of establishments. In either case, the prohibition is attracted in respect of employment of a “child” who has not completed his fourteen years of age. As aforesaid, in the present case, it is common ground that all the six persons rescued from the working place of the Petitioners were above 14 years of age. Indeed, it is the prosecution case that they are below 18 years of age. But that will be of no avail in the context of the requirement of sections 3 and 7 of the Act of 1986. If so, it necessarily follows that the said offence is wrongly applied in the FIR registered against the Petitioners. To that extent, the Petition ought to succeed. As a result, the FIR in question is quashed and set aside only to the extent of sections 3 and 7 of the Act of 1986.
  1.  We make it clear that observations made in this Judgment in no way mean that we have expressed any opinion one way or the other in the context of offence under section 374 of I.P.C. or sections 23 and 26 of the Act of 2000. All questions raised in the context of those offences are left open to be agitated in appropriate proceedings by the Petitioners after filing of the chargesheet.
  1. Petition disposed of on the above terms.

(A.P.BHANGALE, J.)

(A.M.KHANWILKAR, J.)